For months, the debate around the future of the National Security Agency’s collection of millions of Americans’ phone records was framed as a stark choice between ending the program completely or continuing it exactly as is.
Thursday’s landmark ruling by a federal appeals court in New York — which found that the once-secret program was unlawful — has made the latter option, already a long shot, even more remote, political observers said.
Posted inFISA|Comments Off on WaPo: Bulk records collection nearing endgame
BOSTON — At a mock airport in an underground laboratory here at Northeastern University, students pretending to be passengers head through a security exit in the right direction, while a young man enters going the wrong way. On a nearby computer screen, a newly developed video surveillance software program flags the wayward person and sounds an alarm.
A pre-Jardines dog sniff outside the door was valid in this circuit, and the court has already sustained on good faith such a sniff in United States v. Davis, 760 F.3d 901, 903, 905 (8th Cir. 2014). United States v. Mathews, 2015 U.S. App. LEXIS 7398 (8th Cir. May 5, 2015).
Towing an illegally parked inoperative car in plaintiff’s front yard is reasonable for due process purposes under Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir. 1982), and that case informs Fourth Amendment reasonableness, too. It was reasonable here. Noble v. Village of Elliott, 2015 U.S. App. LEXIS 7553 (7th Cir. May 7, 2015).*
Posted inCurtilage, Dog sniff, Reasonableness|Comments Off on CA8: Circuit authority authorized dog sniff at door before Jardines so good faith applies
Defendant’s argument that there was not probable cause for the automobile exception is different from the issue of the automobile exception does not apply because the car was not mobile. Thus, it is not preserved for appeal. State v. Brock, 270 Or. App. 675, 2015 Ore. App. LEXIS 524 (May 6, 2015).
McNeely applies to any case in New Jersey not yet final. Here, McNeely was decided before the suppression hearing. State v. Adkins, 2015 N.J. LEXIS 393 (May 4, 2015).*
The record supports the finding of consent. State v. Vanhoose, 2015-Ohio-1728, 2015 Ohio App. LEXIS 1670 (5th Dist. May 4, 2015).*
Posted inAutomobile exception, Drug or alcohol testing|Comments Off on OR: PC for the automobile exception is not the same argument as car wasn’t mobile, so it’s waived for appeal
Yesterday the Second Circuit declared the NSA’s bulk telephone metadata program unlawful. Specifically, it ruled that it was unauthorized by section 215 of the USA PATRIOT Act (and thus did not reach the constitutional law questions). At the same time, however, it declined to grant an injunction that would have halted the program and instead sent the case back to the district court to reconsider the issues. As the Second Circuit recognized, many of the issues — many of which could may be mooted by congressional action (or inaction) between now and June 1, when this key statutory provision is set to expire.
Posted inFISA|Comments Off on Just Security: The Substance of the Second Circuit on 215: Four Key Takeaways
The trial court erred in applying the search incident doctrine to defendant’s vehicle search and suppressing when the state also argued the automobile exception. Remanded for consideration of that issue, too. State v. Walker, 2015 Mo. App. LEXIS 501 (May 5, 2015).
A coram nobis petitioner who’s already litigated and relitigated his search and seizure claim can’t do it here without “new evidence,” and he doesn’t have anything new to present. Jefferson v. State, 2015 Tenn. Crim. App. LEXIS 332 (May 6, 2015).
Where defendant was suspected of ongoing harassment by use of the mail, the fact he allegedly mailed an IED eleven months earlier was not stale for purposes of a search warrant for his house looking for parts of the IED as a part of the harassment investigation. United States v. Shrader, 2015 U.S. Dist. LEXIS 59193 (N.D. Okla. May 6, 2015).*
Posted inAutomobile exception, Search incident, Staleness|Comments Off on MO: Trial court erred in suppressing car search incident without also considering automobile exception
Would anyone seriously argue that laptops, emails, and smartphones are not the 21st equivalent of papers and effects? Of course not. But……. terrorism.
We cannot bear the thought of another large terror attack here. Rightly or wrongly, that’s the fact. It’s about as close to a universal consensus as you get in this country. And it’s also pretty evident that we consider the massive surveillance going on as having some utility in preventing such an attack. Tracking and uncovering plots before they are carried out is the goal, and spying on everyone is the means. Has there been misuse of this data? Maybe, maybe not, but they HAVE it. That’s the bottom line.
You can grumble at Obama about this, or George Bush, or both. But they are doing what the vast majority wants them to do. Prevent the attack.
Posted inFISA|Comments Off on WaPo: Friday Rant: Bills of Frights edition
Defendant shared the residence with a woman, and the police were permitted in and sought consent. He refused, telling her: “‘[D]on’t … do it, don’t make it easy, make them get a warrant.’ He then asked a detective if he was free to leave, and the detective responded that he was. Defendant left the residence and Helms subsequently led the detective into a bedroom where numerous pieces of stolen property were recovered.” His leaving left her in control to consent to the search. People v. Grillo, 2015 NY Slip Op 03880, 2015 N.Y. App. Div. LEXIS 3841 (3d Dept. May 7, 2015).
Trash pulls that don’t intrude on the curtilage are lawful in Ohio. Here, a marijuana leaf was found. Coupled with the power usage in the house being three times the neighboring houses, the totality suggested a grow operation inside. State v. Adkins, 2015-Ohio-1698, 2015 Ohio App. LEXIS 1645 (12th Dist. May 4, 2015).*
Posted inConsent, Curtilage|Comments Off on NY3: Def’s refusal to consent was waived when he voluntarily left the premises to his live-in girlfriend
Effects of the War on Terror on U.S. citizens, such as surveillance, secret interrogations, and being detained without charges, are becoming increasingly visible.
Posted inFISA|Comments Off on The Libertarian Republic: US Citizen Secretly Detained Without Charges Shows the Growing Effects of Counterterrorism Policies
Sen. Rand Paul is calling the debate on an issue that puts him at odds with Majority Leader Mitch McConnell “a defining moment for our country.”
In a series of tweets, the junior Kentucky Republican declared he would do what was in his power to preclude reauthorization of expiring National Security Agency surveillance powers under the Patriot Act.
“I will fight tooth-and-nail to stop a blanket reauthorization of this attack on our freedoms,” Paul said on Twitter. “But the defenders of the surveillance state are going to do everything they can to defeat you and me.”
Posted inUncategorized|Comments Off on Roll Call: Paul’s Anti-NSA Push Is at Odds With McConnell’s Agenda
The U.S. Court of Appeals for the Second Circuit has ruled that section 215 of the USA-PATRIOT Act never authorized the National Security Agency’s collection of all Americans’ phone calling records. It’s pleasing to see the opinion parallel arguments that Randy Barnett and I put forward over the last couple of years.
Posted inFISA|Comments Off on Cato: In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property
Edward Snowden’s biggest leak was that the Foreign Intelligence Surveillance Court had interpreted Section 215 of the Patriot Act to authorize bulk collection of everyone’s phone records. This was astonishing news, as nothing on the face of the face of the statute suggested it had that anything like that broad a reach. Legal challenges followed, on both statutory and constitutional grounds.
Posted inFISA|Comments Off on WaPo: Second Circuit rules, mostly symbolically, that current text of Section 215 doesn’t authorize bulk surveillance
§ 215 of the Patriot Act does not authorize the NSA’s bulk collection of metadata of telephone calls, but the decision is stayed. The third party doctrine is important, but it doesn’t have to be reached. SCOTUS’s Amnesty International v. Clapper on lack of standing is distinguished because it is clear that the plaintiffs’ calls were intercepted and the controversy is not speculative. ACLU v. Clapper, 2015 U.S. App. LEXIS 7531 (2d Cir. May 7, 2015)
This appeal concerns the legality of the bulk telephone metadata collection program (the “telephone metadata program”), under which the National Security Agency (“NSA”) collects in bulk “on an ongoing daily basis” the metadata associated with telephone calls made by and to Americans, and aggregates those metadata into a repository or data bank that can later be queried. Appellants challenge the program on statutory and constitutional grounds. Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments. We affirm the district court’s denial of appellants’ request for a preliminary injunction. Continue reading →
Posted inFISA, Third Party Doctrine|Comments Off on CA2: § 215 of the Patriot Act does not authorize the NSA’s bulk collection of metadata of telephone calls
The Texas exclusionary rule applies to private actors. The club security guards here had at least reasonable suspicion to detain and handcuff defendant for attempting to sell cocaine in the club as a citizen’s detention, akin to a citizen’s arrest. They did not search him. The officer did and found drugs. It was reasonable. Melendez v. State, 2015 Tex. App. LEXIS 4577 (Tex. App. – San Antonio May 6, 2015).
An officer responded to a domestic situation where apparently both participants were fighting, and the man was drunk. The officer separated them and took him outside for officer safety because he was the most belligerent and it was unknown if a weapon was in the house. This was reasonable and on reasonable suspicion, and defendant’s actions thereafter justified his arrest. State v. Parvin, 2015 Tenn. Crim. App. LEXIS 334 (May 6, 2015).*
The CI’s statement to the police was generally corroborated. “It is not necessary, however, for police to corroborate every single statement made by an informant.” United States v. Pappano, 2015 U.S. Dist. LEXIS 57897 (D.Vt. May 4, 2015).
Tennessee is an Aguilar-Spinnelli state and the affidavit for the search warrant here did not satisfy the standard. Little, however, was seized. Compared to the video of the defendant committing the crime, it was harmless error. State v. Pierce, 2015 Tenn. Crim. App. LEXIS 327 (May 5, 2015).
Posted inUncategorized|Comments Off on D.Vt.: “It is not necessary, however, for police to corroborate every single statement made by an informant.”
Even a consent to forfeiture requires the government establish nexus between the property and the crime. United States v. Beltramea, 14-1899 (8th Cir. May 6, 2015): Continue reading →
Posted inForfeiture, Nexus|Comments Off on CA8: Even consent to forfeiture requires the government establish nexus between the property and the crime
Most people realize that emails and other digital communications they once considered private can now become part of their permanent record. But even as they increasingly use apps that understand what they say, most people don’t realize that the words they speak are not so private anymore, either. Top-secret documents from the archive of former NSA contractor Edward Snowden show the National Security Agency can now automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored.
Posted inFISA, Surveillance technology|Comments Off on The Intercept: The Computers are Listening: How the NSA Converts Spoken Words Into Searchable Text
Discovery of the flights – which involved at least two airplanes and the assistance of the FBI – has prompted the American Civil Liberties Union to demand answers about the legal authority for the operations and the reach of the technology used. Planes armed with the latest surveillance systems can monitor larger areas than police helicopters and stay overhead longer, raising novel civil liberties issues that have so far gotten little scrutiny from courts.
Posted inSurveillance technology|Comments Off on WaPo: Surveillance planes spotted in the sky for days after West Baltimore rioting
A new bill in Congress would require law enforcement agencies to get court-ordered warrants before targeting U.S. residents in searches of electronic communications collected by the National Security Agency.
The End Warrantless Surveillance of Americans Act, introduced Tuesday by three members of the House of Representatives, would end the so-called surveillance back door that allows the FBI and other agencies to search U.S. emails, texts and other data swept up in NSA surveillance of overseas communications.
Posted inFISA|Comments Off on PCWorld: Lawmakers move to end warrantless surveillance of U.S. residents
Defendant was under investigation by Puerto Rico police for lewd acts with a minor. There was no suggestion of child pornography. Thus, it was conclusory for the judge issuing the search warrant for defendant’s computer to find nexus or probable cause to find child pornography on this record. The affidavit was purely conclusory, and did not even support the good faith exception. United States v. Cordero-Rosario, 2015 U.S. App. LEXIS 7365 (1st Cir. May 4, 2015): Continue reading →
Posted inGood faith exception, Probable cause|Comments Off on CA1: An investigation of sex with a child doesn’t automatically translate into child porn on def’s computer; affidavit purely conclusory
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
